It is time to fix India's criminal justice system

“….it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done” – Lord Hewart.

The Indian criminal justice system appears to be creaking and groaning at the joints. More importantly, very little meaningful effort has been directed towards addressing systemic issues. Knee-jerk measures, howsoever well-intentioned they may be, are often triggered by public outrage - the anti-rape bill, which is currently in the works, being one such. TMC’s Derek O’Brien labelled it fuddy-duddy and BJP’s Nirmala Sitharaman, while not denying the need for such a law, hit the nail on the head when she said it was not substantive and was a result of poor application of mind.

I must confess that, like many others, I was pleasantly surprised by the proposed legislative action [196 Lok Sabha MPs participated] – normally the expected response involves a cacophonous din of white noise sans signal followed by an insuperable wall of silence.

However, the issue that needs to be addressed is much larger. How effective will the Criminal Law Amendment Bill 2013 [when finally passed] be without other structural flaws being addressed? How are laws going be complemented by measures that prevent rather than merely aim to punish? Have things started moving on police reforms? Is the judicial infrastructure suitably equipped and robust enough to deal expeditiously with the legal cases? After all, justice needs to be done within a reasonable period of time for it to be truly just.


Image used for Representational Purpose only. Reuters

In other words, the need of the hour is a proactive and integrated approach to problem-solving, as against the current reactive, higgledy-piggledy quick-fix of stand-alone measures.

In a three-part series, of which this is the first, I will attempt to shed some light on 3 of the 4 elements of the criminal justice system - judiciary, prosecution and police and investigating agencies.

Here it goes

Judges and the Seven Seven Deadly Sins: Were I to say that the judges in India are afflicted with their own set of seven deadly sins, a few legal luminaries would plausibly start sharpening their legal knives. Were I then to further detail out the seven deadly sins and put them out on a public platform, I could kiss my sanity goodbye; inviting a certain wrath that is cloaked in a farrago of legalese, methinks, would be an arrant piece of folly.

Thankfully, I don’t have to do any such thing.

Justice Ruma Pal ruffled a few feathers back in 2011 when she observed that the judges are fierce in using the word [independence] as a sword to take action in contempt against critics, before going on to state that this concept is used as a fig-leaf to cover a multitude of sins, some venial and others not so venial. While the judiciary in India – especially the apex court – is the saving grace as far as pillars of democracy go, it serves no purpose elevating it to a near-divine status in the empyrean, beyond enquiry and reason.

At theV.M.Tarkunde Memorial Lecture, Justice Pal [from the safe haven of retirement] then proceeded to enumerate the seven sins:

1) Brushing under the carpet or turning a Nelsonian eye towards injudicious conduct of other judges, the law of contempt being used as the great silencer.

2) Quoting the maxim 'Be you ever so high, the law is above you', she had then identified 'hypocrisy' as the second deadly sin. Judges who enforce the law for others often break that law with impunity i.e., traffic violations and the subsequent issuance of contempt notice to a hapless traffic constable who was just doing his job.

3) The process of appointment of judges [the collegium system] which is cloaked in secrecy, using a process which strains the Constitution… to an extent never witnessed before or after.

4) Contrary to the enlightened nonsense that Justice Katju dishes out on intelligence, mind and reasoning [presumably, his own], Justice Pal hinted at the sin of  plagiarism and prolixity, wherein the judges resort to unnecessary use of passages from textbooks and decisions of other judges — without acknowledgement in the first case, and with acknowledgement in the latter. Many judgments are in fact mere compendia or digests of decisions on a particular issue, with very little original reasoning in support of the conclusion.

5) Intellectual arrogance or what some may call intellectual dishonesty is manifest when judges decide without being bound by principles of stare decisis or precedent.

6) Independence implies discipline to decide objectively and with intellectual integrity and as the judicial oath of office requires, without fear, favour, affection or ill-will.

7) And then she drove the screw deeper and turned it with disarming plain-speak... nepotism or what the oath of office calls favour and affection... such as judges using a guesthouse of a private company or a public sector undertaking for a holiday or accepting benefits like the allocation of land from the discretionary quota of a chief minister… nothing destroys a judge’s credibility more than a perception that he/she decides according to closeness to one of the parties to the litigation or what has come to be described in the corridors of courts as face value

And what lies beneath? Vacancies, sub-optimal sanctioned strength and a sky-high backlog, that’s what! Let me share a few findings pertaining to the performance metrics of the Supreme Court, the High Courts and the subordinate courts:

The Biennial Report, High Court of Delhi [2008-10], paints a dismal picture:

• Vacancies [Judges] – 20%
• Average working days/month - 19-21
• Average Rate of disposal of cases/day/judge – 5
• The pendency of cases as of March 2010 - 132,000 cases
• The pendency of main cases as of March 2010 - 61,000 cases

Back-of-the-envelope calculations suggest that the Delhi High Court would take about 11 years just to clear the backlog if the trendlines for fresh filings and disposal rate could be maintained at the 2009-10 levels!

A deep-dive into the sanctioned strength, vacancies, disposal rates and pendency reveals an eerily similar bottle-necking across all courts. [Data Sources: Court News, April-June 2012 , Supreme Court – Pending Matters March 1, 2013 and others]

• Vacancies: Supreme Court - 13 percent; Allahabad - 46 percent ; AP - 32 percent; Karnataka; 22 percent , Bombay; 20 percent; Kolkata -  24 percent
• Vacancies: All 21** high courts:29 percent.
• Vacancies : District and subordinate Courts:21 percent.
• Pendency in the apex court: approx 65,000 cases, out of which 65 percent are pending for more than 1 year
• Pendency across all high courts: 4.3 million cases
• Pendency across all district and subordinate courts: 27 million cases
• Pendency in other tribunals and quasi-judicial bodies: 3 million
• In 11 out of 21 high courts, the rate of disposal of cases/quarter  is less than the rate at which news cases are being filed – the implications are not hard to decipher
• If one were to consolidate the data from all the high courts and assume that the trend-lines on fresh filings and disposal rates hold [at June 2012 levels, for the quarter April-June 2012], it would take till the end of time, and even then there would be a backlog!
[** excluding the 3 newly instituted HCs in North-east India]

Admittedly, when one widens the scope of the research by expanding the time horizon and factoring in more recent data points, some of the stunningly scary scenarios will get watered down a whisper. The central point, though, on the mismatch between the optimum and installed processing capacity, in a manner of speaking, would still hold. The bottlenecks that exist in the judiciary need to be tackled expeditiously as the current configuration threatens to further erode the faith of the citizens in the judicial systems.

Afterthought: With so many wise men in the executive, the legislature and the bureaucracy, why do the simplest and most obvious of solutions elude their collective gaze? Or is it, once again, a question of political will – the lack thereof?

Seemingly, the criminal justice system is being dragged prostrate on the cobblestoned pathways of political power, its belly scouring and scraping against the rough. How long before it is reduced to a bloodied mass of exalted nothingness?

Perceptions are never formed in a vacuum.

More to follow, next week...

Updated Date: Mar 21, 2013 08:57 AM

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